Criminal law
- Evidence - Documents - Hearsay - Circumstantial evidence -
Accused charged with distributing child pornography by sending computer files
to computer bulletin board - Accused using code name - Identity of accused
proven by circumstantial evidence - Documents found in accused's possession
and files on accused's computer used as original circumstantial evidence that
accused and the code name were linked in meaningful way - Inference that
accused and person using code name were same person.

JP was charged with one count of
distributing obscene pictures
and one count of
distributing child pornography
by using his personal computer to upload,
i.e., to send, computer files to a computer bulletin board where the files
could be downloaded, i.e., received by other computer users. The charges
arose after an investigation in which KB, a computer expert, download computer
bulletin boards The files bore the identification of having been Zephyr scan
"Recent Zephyr", and certain images contained the words "Recent Zephyr scan".
Pursuant to a search warrant, a search was made of JP's bedroom and, among
other things, documents, catalogue pictures, lewd pictures of children, a
manila folder labelled "Recent Zephyr's Software and such", and JP's computer
system were seized. The system included a backup tape and a scanner, a device
permitting images to be reproduced on a computer where they could be altered.
A printout was made of items stored on the backup tape, and the items included
various documents identified by references to Recent Zephyr. The printout
included a Series of images which appeared to be steps in the creation of one
Zephyr. One of these images bore JP's name. It was admitted that the images
and text were obscene and pornographic; however, the accused argued that the
Crown had not proven that it was he, using the code name Recent Zephyr, who
had uploaded the computer files, and the accused argued that uploading
computer files did not constitute as defined by law.

There was no admissible evidence to prove uploading of obscene material, and
the accused should be acquitted on this count; the other, however, was proven.
The evidence established that the accused was Recent Zephyr. The fact that
many documents in the accused's computer exhibit the name Recent Zephyr tended
to indicate that the code name was his. Further, the accused knew that he had
documents in his computer containing references to child pornography with the
name Recent Zephyr on a matching image. This correspondence was a piece of
original or real circumstantial evidence that the accused and Recent Zephyr
were one. It was logical to assume that someone would not leave his name on
illegal material on a backup tape if he were not somehow connected to it or
involved in its creation. Given that the accused's possessed a scanner and
given that certain similar to drawings and pictures in the accused's
possession, it was reasonable to conclude that he created the images placed on
the bulletin board which bore the name Recent Zephyr did not violate the
hearsay rule; the documents were used as pieces of original circumstantial
evidence that the accused and the name Recent Zephyr were so frequently linked
in a meaningful way as to create the logical inference that they were same
person. Having found that the accused used the name Recent Zephyr, it could be
conclude that the documents on his backup tape purportedly authored by him
were his creations and were as such admission that he uploaded the files
containing child pornography. To suggest that the files were created by an
imposter but knowingly stored by him on a backup tape was conjecture without
any evidentiary support. Finally, as a matter of law, uploading files onto a
computer board where the public has access to them was distribution.

TRIAL
on charges of distributing obscene pictures and child pornography

Philip Enright, for the Crown.John Collins, for accused.

SPARROWPROV.
DIV.
J.: --
The accused Joseph Pecciarich is
charged that (1) between the 20th day of August, 1993 and the
28th day of August 1993 he unlawfully did distribute obscene
pictures, to wit a series of files of computer images, and (2)
between the 7th day of August 1993 and the 30th day of September
1993 he unlawfully did distribute child pornography, to wit
a series of computer images and text files. In short, he is accused
of using his personal computer to send the obscene texts and
images to one or more computer distribution centres referred to
as bulletin boards, where they can be accessed by or sent to other
computer users.

The Facts

Defence counsel has admitted that the images and texts in question
are obscene and pornographic as charged; however, he argues that
the Crown has proved neither distribution in fact by his client,
nor distribution as defined by law.

The case commenced with a voir dire regarding certain statements
made to police by the accused, which were ultimately ruled admissible.
They occurred during, and immediately after the execution of a search
warrant on October 21, 1993 at his home at 2024 Millway Gate in
Mississauga, where he was found lying on the bed in his upstairs bedroom.
His computer system, a brown brief case filled with documents, catalogue
pictures and sketches, and other items were seized in the bedroom.

The investigation which commenced in mid-July 1993, and lasted through
mid-October, was led by Detective Constables Sweeney and Sutherland,
and conducted largely by computer specialist Kevin Blumberg. Mr. Blumberg
was engaged specifically for the purpose of reviewing materials made
available to computer users via computer bulletin boards and locating
items which were obscene and/or in the nature of child pornography or
hate literature. He did so by using a directory of bulletin boards
called "Toronto Computes", contacting those which appeared to provide
adult items and identifying images and texts which appeared to fall
within the categories described above.

Mr. Blumberg explained that in order to access a bulletin board, he
would enter a number, and then fill out an application to use the
bulletin board, which would be accepted or declined by the manager,
known as the systems operator. Mr. Bllumberg would then scrutinize
the available files, and "download", or replicate certain files or
catalogues of file descriptions which he thought would be of interest
to the police. These select items would be stored on the hard drive,
or permanent storage area of his computer.

In exchange for receiving the "downloaded" material, Mr. Blumberg, using
the alias "Romulus", would provide a file as consideration, usually being
one-third or one-quarter of the size of the downloaded file. The file
is delivered by a process known as "uploading", or transferring from a
personal computer to another computer system such as a bulletin board.
He described the programs he provided as "general" in nature. In other
relevant testimony he stated that many of the files which he downloaded
were identifiable by the terms "GIF" (Graphic Interchange Format)
indicating a particular type of format for graphics or pictures, and
"ZIP" indicating textual information that is compressed and must be
brought back to its original state with a particular program.

After generally describing the way in which computer bulletin boards
are accessed, Mr. Blumberg testified as to how on August 16, 1993 he
contacted "the Gateway" -- the major site of the obscene and pornographic
material allegedly "uploaded" or distributed by the accused. His
application was accepted by the systems operator, identified as one
Michael Keating, who verified Mr. Blumberg's identity and age by calling
him back personally. Verification of his access thereafter was done
by a computer driven system. The bulletin board was identified as
containing adult files GIF, the "Cosysop" (co-systems operator) was
identified as "The World Famous Recent Zephyr", the alleged code name
of the accused. He then examined a catalogue of available files,
containing a brief description, date of creation, and date of uploading,
and selected seven for downloading and storage to be reviewed by the police.

Regarding the files listed in count 2 of the information, Mr. Blumberg
testified that on August 20, 1993, he downloaded YNGFUN 10.ZIP and
YNGFUN 11.ZIP, both of which were identified as productions of RECENT ZEPHYR,
copyright 1993. He testified that both text files were seen on the
Gateway as well as other bulletin boards.

In further evidence addressing the second count, Mr. Blumberg testified
that the graphic, or pictorial files Moppet 1.GIF through Moppet 4.GIF
were downloaded by him on September 20, 1993, all exhibiting on screen
a printed statement that they were uploaded by Recent Zephyr on dates
in August and September, 1993. A sample description of MOPPET 01 was
"A Gateway original GIF"! Two with girls fully nude and a younger one
without panties, and just pulling off the top! He testified that all
remaining files specified in count 2 of the information were seen on
either the Gateway or another bulletin board such as "Scruples", and all
were identified as having been uploaded by Recent Zephyr on August 3, 1993.
Only certain ones were downloaded and stored, due to time and space
limitations.

Regarding the files of allegedly obscene pictures specified in count 1,
Mr. Blumberg testified that they were all described as having been
uploaded onto the Gateway by Recent Zephyr on dates in August 1993.
Certain files contained a limited amount of graphic text such as "Guy
and girl have sex and piss on each other in the series", in file PDRNKRI.GIF.
Again, only certain files were downloaded and stored by Mr. Blumberg.
Other files purportedly uploaded by Recent Zephyr were seen on many
bulletin boards, and sometimes identified as associated with the company
names "Yes Software" and "UCP Software".

In other evidence in chief, Mr. Blumberg described how a device called
a scanner, seized in the accused's bedroom, can be stroked across an
image such as a picture of a child from a catalogue in order to reproduce
it on a computer file. Once stored in the computer, other software could
be used to make changes such as removing clothing and "drawing in"
body parts including genitalia. In cross-examination, Mr. Blumberg
acknowledged that even if images were uploaded by a subscriber to the
bulletin board, the systems operator could make the alterations described
above. In addition, the operator could insert the words "uploaded by
Recent Zephyr", without his knowledge. Furthermore, an imposter could
upload materials onto the bulletin board in the name of another subscriber,
using his telephone number without his knowledge; however, in testimony
which was less than crystal clear, Mr. Blumberg explained that a system
of call back verification may or may not pick up on the false identity
of the uploader.

Following Mr. Blumberg, Detective Constable Sweeney gave testimony
concerning all items seized from the bedroom of the accused and the
alleged links between those items and the files viewed on the bulletin
boards and specified in the information. Defence counsel does not
dispute that these items were in his client's possession, but argues
that most of them are hearsay in nature, and therefore cannot be used
to link his client to the obscene and pornographic material. I will
now describe each item by exhibit number.

Exhibit 1 -- Brown briefcase from closet containing documents.

1(a) -- Catalogue picture of three children in bathing suits.
The Crown argues that it is a definite match to ex. 1(c) on argument,
the picture labelled "Moppet" 04.GIF, viewed on the Gateway Bulletin
Board, except that the girls' clothing has been removed;

1(b) -- catalogue picture of children in a wading pool, which the
Crown argues matches ex. 1(b) on argument, except that the boy
has been moved on top of the girl and the clothing removed;

1(d) -- a piece of paper with catalogue cutouts, a drawing of a naked
child and man, and a drawing of a naked girl being held in an obscene
pose by a boy. The Crown argues that the latter drawing matches ex. 9(d),
a printout of an image which was located on a bulletin board and
identified with the markings "Forestwood Kids", "Recent Zephyr", and "RZ"
(see testimony of Detective Sweeney referred to below). The same image
and a series of images which seem to be stages in the development of
Exhibit 9(d) were located on the accused's computer are are described below.

1(e) -- a manila folder labelled "Recent Zephyr's Software and Such".
The folder contains three printouts of a lewd story entitled
"The Forestwood Kids", by Y.E.S. (youth entering sex), referring to
child characters such as Jammie, Alison, Adam and Courtney, and a
scribbled draft of a lewd story entitled YNGFUN*ZIP. The story was
also seen by Detective Sweeney on the Gateway;

1(f) -- a hand-drafted directory of names, addresses and phone numbers
of children in Mississauga, including L.P, C.H, J. who lives on
Forestwood Drive, E. and E.;

1(g) -- an envelope with "Lots of Young Fun" written on the outside,
and a draft lewd story inside referring to children's names seen in
ex. 1(e) and (f); and with the words "Ultimate Connection BS" at the
top of one page;

1(h) -- an envelope with Lots of Young Fun", "rough outline",
"story series" and "Years of fun (YRSFUN*.ZIP), continued from series one",
written on the outside, and draft suggestions for a lewd story inside;

1(i) -- a sheet of scribbles referring to four of the files specified
in count 2;

1(j) -- a baby book with photos cut out;

1(k) -- 2 pages of baby photos;

1(l) -- a chart referring to pages and sizes;

2-7 -- Computer, related parts, and scanner

The brown briefcase also contained a variety of other catalogue
pictures and sketches of children, some of them nude or in lewd poses,
as well as a sheet of paper listing the names of various bulletin boards
under the title "A Recent Zephyr Story" and instructions as to how to
access files by number.

The other relevant series of exhibits consists of printouts of items
located in the storage area of the accused's computer known as the
backup tape, all of which defence argues are inadmissible hearsay,
Detective Sweeney explained that these materials are moved from the
hard drive of the computer to the tape for storage, or use as a "backup".
They can be described briefly as follows:

9(a)

Twenty-four pages of notes of conversations concerning the law
of pornography and sex between adults and minors, which were also
seen by Mr. Blumberg on the Gateway bulletin board. The participants
are recorded as REcent Zephyr, Andy Dabydeen and "Magic"; the recorded
dates are in September, 1993 and the pages are headed with the words
"BBS: the Gateway". Defence counsel argues that this document is
hearsay in nature;

9(b)

a two-page document entitled "UCP Code BBS and software presents a
Recent Zephyr History Note", a summary of how the writer developed
a series of computer text and image files, such as "Forestwood Kids"
and "Moppett", using computer upgrading devices such as a scanner.
Defence again argues that all materials are hearsay;

9(c)

a document entitled REcent Zephyr's Master File list, a list of all
the files referred to in count 2, and a brief description of each;

9(d)

the image of a naked child and man described in 1(d) above, which
Detective Sweeney stated was found on the accused's computer and
a bulletin board system called "Scruples";

9(e)

as described in 1(d), a series of images which appear to be steps
in the creation of 9(d). One image contains the name J. Pecciarch,
(c) 1992, in signature form in the lower right-hand corner;

9(f)

a two-page document entitled "Thoughts", marked "written by Recent
Zephyr". A brief text details how he developed and uploaded to the
BBS some of the files listed in count two, followed by a list,
date and brief description of the files;

9(g)

a document entitled "Recent Zephyr Software", inviting users to
disperse or download his stories, and describing new files;

9(h)

a document entitled "Recent Zephyr's listings and notes, again a
list and description of files including certain ones enumerated in
count two, followed by a description of certain characters including
Jammie, Eddie, Alison, Melissa and Leanne. The address of some
characters is listed as "Forestwood".

During argument, copies of four images from the Moppett files located on
the bulletin board were filed with the courts as exs. 1(a)-(d) on argument
and compared to items in the accused's home. Each image contained pictures
of one or more nude children, a brief accompanying text, the phone number
of the "Gateway BBS", the words "recent Zephyr Scan" running across the
side or top, and the word "Moppett" with the corresponding file number
on the picture. Exhibit 9(d), a scene from the "Forestwood Kids" file
which was also viewed on a bulletin board, also exhibits the fill name,
the term "Recent Zephyr files", and the letters "RZ" in the corner in
the form of a signature.

The other relevant seized evidence was filed as ex. 8, a 38-page document
described by Detective Sweeney as a "user list" providing the names,
addresses and telephone number of bulletin board users, their assigned
security levels, and other information such as numbers of uploads and
downloads. He pointed out that both Recent Zephyr and the accused are
listed as users, with the same telephone number and the same address of
"Mississauga". Recent Zephyr and Michael Keating, whose purported address
is Don Mills, Ontario are both listed as having high security ratings.
Defence counsel again contends that this document is hearsay.

The other relevant pieces of evidence to be considered are the statements
of the accused following arrest. En route to the police station, the
following conversation took place between the accused and P.C. Monette:

Q.

Officers have reason to believe you have uploaded some of this
material. When a person uploads a program, is a person's name
recorded as the sender?

A.

Sometimes.

Q.

Did you leave your name when some programs were uploaded?

A.

Yeah.

At the station, while walking towards an office to complete papers,
Officer Monette reviewed a supplementary record of arrest and had the
following conversation with the accused:

Q.

Now I know how you got into trouble. It says here that you are
the Co Systems Operator on the Gateway bulletin board system - is that true?

A.

Yes.

Q.

How long have you been a Co-Sys-Op there?

A.

2 months.

Q.

Where is Gateway located?

A.

In Don Mills somewhere.

Q.

Have you met the Systems Operator at Gateway?

A.

No.

Q.

What do you get by being the Co-Sys-Op?

A. Nothing. I just lost my computer because of it.

Arguments

The Crown acknowledges that it must prove, as matters of fact (1) that
the accused used the computer code name "Recent Zephyr" and (2) that the
texts and images specified in the information were "uploaded" onto one
or more bulletin boards systems by "Recent Zephyr", namely, the accused.
Defence counsel argues that neither fact has been established, given
that all documents and computer images, text or catalogues required to
make such proof are hearsay.

As a matter of law, the Crown must establish that the uploading of files
of texts and images onto bulletin board systems constitutes "distribution"
as charged in the information. Defence counsel argues that it is not
necessary to consider the issue of distribution, given that there is
simply no proof of uploading by his client.

Count Two -- Distribution of Child Pornography

Proof that the Accused is Recent Zephyr

In my view, the fact that many documents in the accused's computer exhibit
the name "Recent Zephyr" in a place where one would expect the name of the
creator to be tends to indicate that the alias is his. These documents,
all described in the "Facts" section above, include:

1.

Exhibit 1(e) -- the manila folder containing storied called
"Forestwood Kids", with "Recent Zephyr's Software and Such" written
in the corner tab created for labelling;

2.

Exhibit 1 -- the piece of paper in the briefcase listing the names
of various bulletin boards and instructions for accessing files under
the title "A Recent Zephyr Story";

3.

Exhibits 9(b), (c), and (f)-(g), all narrative documents stored on
the backup tape of the accused's computer which feature the name
"Recent Zephyr" at the top and which address the creation and
distribution of pornographic files by him;

4.

Exhibit 9(a), again form the backup tape, being transcripts of
conversations marked "From Recent Zephyr" to "Andy Dabydeen" or
vice versa; and

5.

Exhibit 9(d), from the backup tape, a pornographic image with the
initials "RZ" and the words "Recent Zephyr files" in the lower
right-hand corner.

Generally, documents found in the possession of the accused are admissible
if relevant; they may show acceptance of the truth of the contents, and
most likely will at least show knowledge of the contents: see P.K. McWilliams,
Canadian Criminal Evidence, 3rd ed., at p.6:10310. The law is also
summarized in Phipson on Evidence, 13th ed. (1982), para 21-09:

Documents which are, or have been, in the possession of a party
will, as we have seen, generally be admissible against him as
original (circumstantial) evidence to show his knowledge of
their contents, his connection with, or complicity in, the transactions
to which they relate, or his state of mind with reference thereto.
They will further be receivable against him as admissions (i.e.,
exceptions to the hearsay rile) to prove the truth of their
contents if he has in any way recognized, adopted or acted
upon them.

Defence counsel argues that the documents could have been downloaded
to his client's computer, without his knowledge; however, according to
Detective Sweeney, the documents on the backup tape could not have arrived
there without being directly accepted by the operator of the computer
unless a special configuration of software was used, and no such
configuration was located when the tape was seized by the police.
Therefore, I find as fact that the accused knew he had documents stored
in his computer containing reference to child pornography with the name
Recent Zephyr in areas normally indicative of authorship or proprietorship,
which fact contributes to the inferences to be discussed below.

In determining whether the accused is "Recent Zephyr", it is also necessary
to consider the purported signature of the accused on one image which forms
part of ex. 9(e), being according to Detective Sweeney a series of steps in
the creation of ex. 9(d), a depiction of a man performing oral sex on a child.
The image is titled "Forestwood Kids Part 3". As noted above, 9(d), located
on both the backup tape and according to Detective Sweeney on the "Scruples"
bulletin board, had the name "Recent Zephyr" in the corner; the image in 9(e)
has the signature "J.Pecciarch" (sic). Although usage of the signature
to strictly indicate authorship would violate the hearsay rule, the fact that
it is in the same place as the name "Recent Zephyr" on a matching image
allows me to consider it as a piece of original, or real circumstantial
evidence that J. Pecciarich and Recent Zephyr are one. Furthermore, like
all of the "Exhibit Nine" documents, his possession indicates knowledge --
in this case, knowledge and even complicity in being portrayed as the author
of a piece of pornography. It is logical to assume that someone would not
leave his purported signature or name on illegal material stored on a backup
tape if he were not somehow connected to it, or even involved in its creation.

In determining if the accused is Recent Zephyr it is also necessary to look
at evidence establishing that he is the creator of some of the pornographic
files enumerated in count 2. Regarding ex. 9(d), the image is located on
both the accused's backup tape as well as a bulletin board, and as stated
above its development as a "work in progress" is evidenced by ex. 9(e) from
the backup tape. According to Detective Sweeney, ex. 1(e), found in the
accused's briefcase, is the original drawing which became the computer image,
and examination of it tends to confirm the likeness. Mr. Blumberg explained
how images such as this, being a drawing of central body parts attached to
the head and legs from a catalogue picture, can be placed on a computer
with a device known as a scanner, and further altered with software.
Given that the accused was found in possession of a scanner, ex. 6, and
given that the drawing matches the images found on the backup tape and
the bulletin board, it is reasonable to conclude that he created exs. 9(d)
and (e), which, as detailed above, demonstrate the names "Recent Zephyr"
and "RZ, as well as "J. Pecciarch". It is also reasonable to conclude
that he created the narrative entitled "Forestwood Kids" found in the
manila folder, given that it is part of the same file containing the image
ex. 9(e) which was viewed by Detective Sweeney on the Gateway.

In my view, original evidence also establishes that the accused created
the "Moppett" files enumerated in count 2. Mr. Blumberg testified as to
how ex. 1(c) on argument, a computer image of two naked girls, could have
been a catalogue picture transported to computer by the scanner, with the
clothing removed and genitalia added by computer software. Exhibit 1(a),
a catalogue picture of little girls wearing clothes, found in the accused's
breifcase was stated to be identical to the pornographic computer image
except for the clothing. A cursory viewing confirms Mr. Blumberg's evidence
in this regard. The nude image downloaded by him from the Gateway Bulletin
Board, has the words "Recent Zephyr Scan" across the top, and the word
"Moppett" at the bottom. The logical inference to be drawn is that the
accused created this image, and that the name "recent Zephyr" stamped on
the computer image is therefore associated with him and with the "Moppett"
series.

Mr. Blumberg also reviewed ex. 1(b) on argument, another "Moppett" series
photo of a nude boy on top of a little girl in a pool, with the words
"Recent Zephyr Scan" beside it. He explained how ex. 1(b), a catalogue
photo of children in a pool, found in the briefcase, could have been
altered to create the final image. In my view, his evidence and my own
observations confirm that the accused created this image which is strongly
linked to the name "Recent Zephyr". Exhibits 1(a) and (d), other
pornographic images from the Gateway, also feature the words "Moppett"
and "Recent Zephyr Scan", indicating a link suggestive of creation by
Recent Zephyr. Again, in my view, evidence that the accused created
pornographic images featuring the name "Recent Zephyr" is strong evidence
that they are one and the same person.

In considering ex. 8, the bulletin board user list, however, I agree with
defence counsel that it cannot be used to show that the accused and
Recent Zephyr have the same telephone number and city of residence.
Such use would clearly be for the truth of the contents, and thus would
violate the hearsay rule.

Defence counsel argues that proof of authorship is not possible unless
the documents are used in violation of the hearsay rule -- namely to prove
the truth of their message that he creator is "Recent Zephyr". However,
rather than for truth, I have used the documents as pieced of original
circumstantial evidence that the accused and the name "Recent Zephyr"
are so frequently linked in a meaningful way as to create the logical
inference that they are the same person. A similar exercise was undertaken
in R. v. Bastien (1968), 20 C.C.C. (2d) 562, a decision of the British
Columbia County Court in which an intercepted parcel (ex. 1) exhibiting
the name and return address of the accused was admitted as proof that
he lived at the address and sent the parcel containing stolen money.
A pad which contained an imprint of the writing on the parcel, ex. E, was
also admitted. At pp.565-67 the judge states:

The fact that "F.Cote, 831 Hamilton Street, Vancouver", appears
on the outside of ex. I is evidence from which a jury could conclude
this to be a return address and the identity of the sender or mailer
was Cote, who was in possession of the five $100 bills contained
in ex. I.

The submission concedes the hearsay rule, but although not so
expressly stated by Crown counsel, is founded on the proposition that,
having regard to evidence adduced and the circumstances of the case,
exs. E and I, respectively, are original, circumstantial, evidence,
not hearsay, and, therefore, admissible.

. . . . .

... it is my opinion that the registered package or parcel, ex. I,
intercepted in mail, constitutes some evidence capable of inference
or conclusion that a name and address endorsed thereon is that of
Cote and that Cote was the sender or mailer and had possession
of Ex. I and its contents.

. . . . .

Admissibility thereof does not infringe upon the hearsay rule since
exs. E and I, respectively, are not admitted to prove the truth
of the matters stated thereon or therein; that each constitutes
original, circumstantial, evidence tending to link, connect or
identify Cote with possession of ex. I and, in particular,
the five $100 bills enclosed therein. Each has, therefore, a limited
evidentiary use and probative value, as indicated above.

I also rely upon the recent decision of the Supreme Court of Canada in
R. v. Evans,
[1993] 3 S.C.R. 653, 85 C.C.C. (3d) 97, dealing with a
statement made by an alleged robber to the vendors of the getaway car.
The vendors testified that the purchase mentioned that he had a pregnant
dog and worked in chain link fencing; and it was proven by other evidence
that he had a pregnant dog and worked in chain link fencing. The majority
of the court held that the statements were admissible merely for the fact
that they were even made. At p.662 S.C.R, p.103 C.C.C.,
Sopinka J.
states:

That being said, the statements still have some probative value
as non-hearsay. Quite apart from the truth of the contents, the
statements have some probative value on the issue of identity.
On the issue of identity, the fact that certain representations
are made is probative as it narrows the identity of the declarant
to the group of people who are in a position to make similar
representations. The more unique or unusual the representations,
the more probative they will be on the issue of identity.
I emphasize that the statements are not being used as truth of
their contents at this stage.

In my view, the references to "Recent Zephyr" discussed above are admissible
on a similar basis; namely, that, taken in their entirety and their context,
they narrow or point stringly to the accused as the person capable of being
"Recent Zephyr". Although previously reviewed, the references to the name
which point to the accused should be summarized as follows:

(1)

Pornographic images from the "Moppett" series, downloaded from the
Gateway and referred to in count two, which feature the name Recent
Zephyr.

(2)

documents containing narrative from the backup tape of his computer
which he is deemed to know about, and which feature the name Recent
Zephyr in a position usually designating authorship;

(3)

a pornographic image on his backup tape, labelled Forestwood Kids 3
which features his purported signature on one copy and the name Recent
Zephyr on another copy;

(4)

a file folder in the accused's possession, containing lewd stories,
labelled in pen "Recent Zephyr Software". The stories bear the same
title as the "Recent Zephyr" image referred to in (2) above --
"Forestwood Kids".

Recently, the Ontario Court of Appeal in the decision of R. v. Morrissey
(unreported, March 14, 1995) [now reported ante, p.514]
summarized the law related to the drawing of inferences as follows [p.530]:

A tried of fact may draw factual inferences from the evidence.
The inferences must, however, be ones which can be reasonable
and logically drawn from a fact or group of facts established by
the evidence. An inference which does not flow logically and
reasonably from established facts cannot be made and is condemned
as conjecture and speculation. As Chipman J.A. put it in
R. v. White (1994), 89 c.C.C. (3d) 336 at p.351 (Nfld, C.A.):

These cases establish that there is a distinction between
conjecture and speculation on the one hand and rational
conclusions from the whole of the evidence on the other.
The failure to observe the distinction involves an error
on a question of law.

In applying this principle, I reiterate that substantial documentary evidence
in the possession of the accused and on bulletin boards points to him as
"Recent Zephyr". This evidence, combined with testimony of Mr. Blumberg
that most users of bulletin boards have code names or aliases, and the fact
that all of the documents seized from his home, described in the "Facts"
section, demonstrates that he is generally a creator of child pornography
who therefore would have need of an alias leads to the rational conclusion
that the accused and Recent Zephyr are on and the same person.

Proof that Recent Zephyr uploaded the Files

Having found that the accused used the name "Recent Zephyr", I also conclude
that the documents on his backup tape purportedly authored by him are his
creations and are as such admissions that he uploaded the files enumerated
in count 2. To suggest, in all the circumstances, that they were create by
an imposter, but knowingly stored by him on a backup tape is in my view
conjecture. The admissions can be summarized as follows:

(1)

Exhibits 9(f) and (c), lists of files created by him which according
to the text he intended to deliver to bulletin boards. The files in
count 2 were all ultimately located by Mr. Blumberg on bulletin boards,
and are found on the lists.

(2)

Exhibit 9(g), a statement of Recent Zephyr indicating his intention to
have his "software", "files", and "stories" distributed at no cost.

When determining who uploaded the files, these admissions must be
considered along with the following additional evidence:

(1)

His admission to the police that he left his name when some programs
were uplaoded, and the he was the "Co-Sys-Op" at the Gateway bulletin
board. Although I agree with defence counsel that the admissions are
not totally clear, and that the term "Co-Sys-Op" was not well explained,
the first statement leads to an inference that he uploaded files, and
the second establishes a clear link to the Gateway where some of his
products were proved to be found. In considering the term "Co-Sys-Op"
on such a limited basis, I need not deal with defence argument that it
should have been defined by an expert, or with the effect of his failure
to object until the time of his submissions;

(2)

His possession of a Gateway "user list", exhibit 8, which when considered
not for its truth but for the fact of possession indicates a strong link
to the Gateway;

(3)

Evidence that he is the creator of "Moppett" and "Forestwood Kid" files
which were found on the Gateway and other bulletin boards, which was
reviewed above;

(4)

Other exhibits, which lead to an inference that he is a creator of the
type of child pornography found with his name on it on bulletin boards.
These include 1(f), the catalogue of characters who appear in the
Forestwood Kid stories found in the "Recent Zephyr" manila file, and
in 9(h) a list of his files; 1(a) and 1(b), story drafts marked with
file names including "Young Fun", and the catalogue cutouts and lewd
drawings contained in his briefcase; and

(5)

Evidence of his fascination with child pornography, as exhibited (a)
in his discussion with Andy Dabydeen found on his computer, and at
the bulletin board, and (b) the scrapbook of newspaper articles on
the subject, as well as articles about sexual assault cases and related
legalities.

Defence counsel argues that all the evidence reviewed may well indicate that
the accused created child pornography and even some of the files enumerated;
however, he contends that uploading is not proved, as despite the evidence
referred to above an imposter could have uploaded the material under his
name, and/or downloaded materials to his computer. This position, however,
is not borne out by the evidence. As stated earlier, Detective Sweeney
clarified that such downloading could not occur without his knowledge, unless
special software was configured, and no such materials were located. Although
Mr. Blumberg admired [sic] that uploading by an imposted was a remote
possibility, it is not a suggestion genuinely supported by evidence, given
the absence of any indication that the materials created by him were
transmitted through a third party. The law in this area is summarized in
R. v. McCrum (1974), 21, C.C.C. (2d) 343 at pp.349-50,
9 N.B.R (2d) 666 (C.A.):

It is firmly established law that conclusions or references based on
facts, established by evidence only, can be considered in applying
the rule. Possible explanations based on conjecture or assumption,
not support by the evidence, but advanced as mere possibilities in
argument should not be considered by the Court:
see Wild v. The Queen,
... [1971] S.C.R. 101 at pp.110-1, wherein Martland, J., stated
[quoting from the judgement of Smith, C.J.A., in the Appelate Division,
[1970] 1 C.C.C. 67 at p.72, 69 W.W.R 138]:

I agree with and consider that the following statement of Evans,
J.A., for the Court of Appeal of Ontario in R. v. Torrie
[[1967] 3 C.C.C. 303, [1967] 2 O.R. 8, 50 C.R 300], at p.306 is
applicable to the case at bar. That statement is as follows:

With the greatest respect, I am of the opinion that the learned
trial Judge misapplied the rule in Hodge's Case (1838),
2 Lewin 227, 168 E.R. 1136, as to circumstantial evidence in
that he based his finding of reasonable doubt on nonexistent
evidence. In R. v. McIver, [1965] 1 O.R. 306 at p.309,
[1965] 1 C.C.C. 210 at p.215, McRuer, C.J.H.C., said:

The rule (in Hodge's Case) makes it clear that the case
is to be decided on the facts, that is, the facts proved in
evidence and the conclusions alternative to the guilt of
the accused must be rational conclusions based on inferences
drawn from proven facts. No conclusions can be a rational
conclusion hat is not founded on evidence. Sch a conclusion
would be a speculative, imaginative conclusions, not a
rational one.

I recognized that the onus of proof must rest with the Crown
to establish the guilt of the accused beyond a reasonable doubt,
but I do not understand this proposition to mean that the Crown
must negative every possible conjecture, no matter how irrational
or fanciful, which might be consistent with the innocence of
the accused.

I do, however, agree with defence counsel that the statements form the
bulletin "uploaded by Recent Zephyr", accompanied by a date in August or
September 1993, are pure hearsay and therefore not evidence of uploading
or of the date specified.

The Crown argued that, given the other admissible evidence of uploading,
the statements "uploaded by Recent Zephyr" have probative value and should
there fore be admitted for their truth. Although not specifically referred
to by him, the second ratio in
R. v. Evans, supra,
lends some support to this theory,
in providing for a two-stage test for admissibility of
declarations of the accused. The test is described by
Sopinka J.
as follows
[pp. 668-69 S.C.R., pp.107-08 C.C.C.]:

If there is some evidence to permit the issue to be submitted to the
trier of fact, the matter must be considered in two stages. First,
a preliminary determination must be made as to whether, on the basis
of evidence admissible against the accused, the Crown has established
on a balance of probabilities that the statement is that of the
accused. If this threshold is met, the trier of fact should then
consider the contents of the statement along with other evidence to
determine the issue of innocence or guilt. While the contents of
this statement may only be considered for the limited purpose to
which I have referred above in the first stage, in the second stage
the contents are evidence of the truth of the assertions contained
therein.

Detective Sweeney, however, gave the following testimony concerning the
statement "uploaded by Recent Zephyr", as it appeared along with the files
on the bulletin board:

"Uploaded by RECENT ZEPHYR" is predominantly put on by the actual
computer system itself automatically. So, you have no control over
the particular message. It is changeable by the system operator or
the co system operator but that would be an automatic product to put
that on.

That testimony, in my view, is less than crystal clear and does not permit
me to find on a balance of probabilities that the accused produced the alleged
admission of uploading. In addition, I question whether the ratio
from
Evans referred to above is applicable to a case such as this, when
the ultimate issue is whether or not the contents of the statement, namely,
"Uploaded by Recent Zephyr", are true. In applying
Evans,
if I decided that
the statement was that of the accused on only a balance of probabilities,
I would then be permitted to consider whether it was true on a higher standard
of beyond a reasonable doubt. Thus the analysis a the second stage would
lead to the finding of guilt or innocence, despite the fact that the accused
was proved to be the maker of the statement on the basis of non-hearsay
evidence weighed only on the balance of probabilities. With all due respect,
I question whether
Evans was meant to provide for access to a statement
for its truth in this manner when the statment alone could lead to a conviction
or acquittal, rather than simply forming part of a greater body of evidence
for total consideration as was the situation in
Evans.

It is my conclusions, however, that despite the inadmissibility of the
phrase "uploaded by Recent Zephyr", the Crown has proved uploading of the
files in count 2 by the accused beyond a reasonable doubt on the basis
of the evidence summarized above.

Law Relating to Distribution

I agree with the Crown that the evidence of the uploading of the files
onto bulletin boards, which the public can access through an application
process, is clear evidence of distribution. The various cases referred
to deal with the distinction between sale and distribution, making it
clear that more than retail sale to the public is required for the latter
charge: see R. v. Householders T.V. & Appliances Ltd. (1984),
20 C.C.C. (3d) 561 (Ont. Co. Ct.),
affirmed loc. cit. at p.571 (Ont. C.A.).
However,
in this case the evidence of uploading by the accused along with his
statements in exs. 9(b), (c), (b) and (f) about his intent to have them
widely dispersed is clear evidence of intent to distribute.

Limitation Period

The Ontario Court of Appeal in R. v. Sudbury News Service Ltd. (1978),
18 O.R. (2d) 428 at p.433, 39 C.C.c. (2d) 1 at p.5, stated that distribution
is complete upon delivery. By analogy, absent other evidence, distribution
of computer files to a bulletin board is complete upon uploading. Given
the inadmissibility of the statements proving the dates of uploading as
found above, I must consider whether the Crown, having proceeded summarily,
has proved by other evidence that the offence in count 2 occurred within
six months of the laying of the charge as required by
s. 786
of the
Criminal Code, R.S.C. 1985, c. C-46.

In my view, ex. 9(c) makes it clear that the "Young Fun", "Kiddyeat", and
"Moppett" files were created withing six months of November 10, 1993,
the date of the laying of the charge; they therefore must have been
uploaded within the limitation period. As there is no admissible evidence
of the date of uploading of other files, however, their distribution within
the requisite time frame is not proved. I am unsure as to whether it is
part of the Crown's theory that the accused's role as "Co-Sys-Op" mad him
a distributor during the relevant time frame; however, given the inadequate
definition of this role, I cannot find that being "Co-Sys-Op" for two months
prior to arrest helps to show that the uploading of all files was done by
him six months before the charge was laid.

Count 2 will therefore be amended to read "between the first day of
June, 1993 and the thirtieth day of September, 1993", to conform to the
evidence, as allowed by
s. 601
of the
Code,
made applicable to summary matter by
s. 795.
Such amendment is allowed unless timing is an essential element
of the offence, which was not argued by defence and is not in my view the
case here: see R. v. B. (G.) (No.1), [1990]
2 S.C.R. 3, 56 C.C.C. (3d) 161.

The accused will therefore be convicted on count 2, for the distribution
of the Moppett", Young Fun", and "Kiddyeat" files only.

Count 1

Regarding count 1, the only evidence given concerning the files specified
therein was Mr. Blumberg's evidence that they were viewed on bulletin boards,
along with the inadmissible phrase "Uploaded by Recent Zephyr" on a particular
date. As such there is no evidence of uploading by him, and therefore no
evidence of distribution as charged. The accused is therefore acquitted
on this count.